Did you know that Legal Island celebrates its 25th Birthday this Summer? And Seamus has been doing Employment Law at 11 with us since September 2017! Hard to believe! So, in celebration of our long-standing partnership, we bring you some of Seamus’ Greatest Hits – the topics and conversations that you engaged with the most. Where are we now with them? Have things changed? And if so, is it for the better?

1. English language in the workplace - Is it ok to insist that staff speak only English in the workplace?
2. Employee behaviour - What standards of behaviour can be inferred into an employment contract? Can an employee’s probation period, for example, be extended for reaons related to their standards of behaviour, rather than for a performance issue?
3. Social media and the workplace – what standards can you insist on in relation to social media in the workplace? What if a sick employee is spotted posting pictures on social media while their off? Can you sack employees for their conduct on social media if it’s not directly related to their job?
4. Resignation - When can a resignation be rescinded?

Christine and Seamus and up to 500 participants  discuss your employment law queries live in our webinar series, “Employment Law at 11”.
Tell your HR colleagues and register individually or get your HR team around the computer and use the webinars as monthly group learning opportunities.

Please note that the employment law matters discussed in this webinar apply primarily to Northern Ireland.

Recording below:

Transcript:

Christine:  Hello, everyone, and welcome to "Employment Law at 11", sponsored by MCS Group. My name is Christine Quinn. I am one of the Knowledge Partners here at Legal-Island. For those of you who don't know me, in my previous life, I was a qualified employment solicitor. So, most of my practice and career has been in London, but I have also practised here in Belfast.

And I'm joined, as always, by Seamus McGranaghan. Seamus is the Director and Employment Law Expert over at O'Reilly Stewart Solicitors. Seamus and I have known each other for many years. We first met when Seamus was a baby solicitor in O'Reilly Stewart, and I was a legal secretary. So, we've known each other for a long time, more years than we care to mention, really.

So, what are we talking about today? So, firstly, we're talking about social media. What can we learn from what's happened with Gary Lineker? That's kind of reopened the debate on social media.

We're also talking employee behaviour. So, how do you deal with somebody who's just a bit meh, who's a bit . . . their attitude is not great? Their work might be fine, you can't really performance manage them, but their attitude is not great. How would you deal with that? And we'll also be looking at that around the probationary period as well.

Then we're going to move on to English language in the workplace. Northern Ireland is a much more diverse country than it once was. We have people from all over the world living and working here. Can we insist that these employees speak English in the workplace?

And then at the very end of the webinar, we're going to talk about resignations. Can an employee rescind their resignation? Maybe you want them to. Maybe you really don't want them to. We're going to be talking about that.

Thanks, as always, to our sponsor, MCS Group. MCS help people find careers that match their skill sets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

And you'll see there our agenda for the day. It's just popped up on the screen there.

So, did you know that Legal-Island turns 25 this summer? We'll be celebrating in various ways over the coming months, so do watch out for some special free one-off events, which we're planning as we speak.

And Seamus has been doing this webinar with Legal-Island since September 2017. Back then, it was called "Any Questions?" It didn't actually become "Employment Law at 11" until August of 2019, believe it or not.

So, Seamus started with my predecessors, Scott Alexander and Rolanda Markey. So, just picture them all huddled round one laptop in the boardroom of O'Reilly Stewart. That was how it started.

Then along came the pandemic and huddling was frowned upon. And then I came along, and I'm in no way connected to the pandemic. It was just a coincidence. The format's changed a bit, but thankfully it's gone from strength to strength.

So, this today is really a bit of a celebration of the long-standing partnership. We're bringing you Seamus's greatest hits today, the topics and conversations that you engaged with the most.

I'm really pleased to see so many new names popping up on the attendee list today, so that's great. You're very welcome. I hope you enjoy "Employment Law at 11". Please do remember to drop your questions into the question box and I'll put them to Seamus as we go along.

But first things first, we've got a little bit of work for you guys today. If we can have a look at some of the polls. We've got Maria in the background doing all the technical stuff thankfully, so we don't have to. So, let's have a look at the polls there, Maria.

So, the first one, "Does your organisation have a social media policy?" You can click yes or no.

Social media was one of the first topics that Seamus talked about back in 2017, which it must have been a completely different world back then for social media. You can't really imagine everyone debating a sports presenter tweeting back in 2017.

So, 74% of people have said yes, they have a social media policy. That's fantastic, isn't it, Seamus, that people have been listening?

Seamus:  Yeah, absolutely. And I would dare say, Christine, that that is well improved from the last time that we discussed social media. But I think it also shows the relevancy of social media now for all of our different businesses and different industries that we work in, and the sort of reliance that we almost have now on social media in terms of getting products out there, getting business promoted, and also the way that things like LinkedIn are used for individuals in terms of promoting not only themselves, but also their business as well.

And I'm sure there's good and bad with LinkedIn. I'm sure that a large part of the whole recruitment explosion that has happened from the pandemic, you see a lot of fingers pointed towards LinkedIn in relation to that. And it is such an important recruitment tool now as well.

But obviously, along with the social media side of things, you have the responsibility that comes with it. And I think that we've all sharpened our pens quite a bit. We're all very much aware now that if we put something on social media, it's stuck there. Even if we delete it, even if we remove it, it's stuck there, and the problems that it's created.

And every so often, even though we've learnt the lessons, there are matters that arise. I think the Gary Lineker one has really been the most recent set of circumstances. And I suppose that the issues around that matter were more sort of social issues within the country as well, and also the very high level of support that he obtained from his colleagues and from public as well.

And it was interesting to see how that all unfolded with such a big corporation like the BBC, who are very, very careful in relation to the social media aspect for their presenters and even how they are very tight and controlled in relation to things like public opinion and things like that. They deliver the news, they do that bit, and the uncomfortableness of what it is.

What we also got to see a little bit of through that was how they work around their contracts and how these contracts are pored over. Because one of the big issues here was that Gary Lineker had said that he felt that he had flexibility and some freedom, and that that was negotiated at the time of the contract.

So, for me, that was really interesting that maybe parts of terms and conditions that we would automatically think about negotiating are at such a high level and how important that has been really as they've worked toward the resolution.

Christine:  Yeah. Great, Seamus. We'll get on to that more later on.

So, if we can have a look at the second poll there, Maria, when you get the chance. There we are. "How would you handle a rescinded resignation?" Really want to understand what your thought process is. So, firstly, would you tell them the resignation has already been accepted? It's a bit of a polite, "Tough luck". Secondly, would you welcome them back with open arms, as there's a talent shortage? Or would it depend on their performance?

I think we've all had situations where people resign and you're absolutely devastated. There are other people that resign, you're not quite so devastated, are you, Seamus?

So, let's see. And that's exactly what we've gone for. We've gone 85% there saying it would really depend on their performance. That's kind of what I was thinking was going to be the answer. What about you, Seamus?

Seamus:  Yeah. Generally, whenever someone puts in their resignation, it's fairly split down the line of we're pleased about that or we're very unhappy that they’ve decided to leave.

And really, it will come down to a number of factors. Performance will be a big one. Personality will be another one. We all have those employees that do really good work, but they're really challenging to work with. So it depends.

And I think it also depends on the nature of where we're at specifically at the minute. I think you'd mentioned previously, Christine, hopefully we're coming off the backend of a very heavy recruitment drive for everybody. Things seem to have settled slightly. Every so often, you get a whole different aspect. But even on the likes of LinkedIn, you don't see as many of "I'm starting a new position" in comparison to what it was like 12 months ago. So things have hopefully settled down in that respect.

But it is a really interesting topic around resignation, specifically whenever employees come back and say they would like to rescind the resignation. There's a number of factors that we'll get into, but you really need to think about how the resignation has come around.

And it's one of those important aspects that I think that discussions are warranted and merited at the time when someone does resign. I think it's a positive step for organisations and businesses to get feedback from their employee as to why that has come around.

Sometimes they volunteer it very easily and you'll get a lot of things that you don't want to hear. And at other times, you'll get maybe a frank and straightforward answer. But there are lessons in there for organisations to work from. But when it comes to rescinding the resignation, it's a tricky legal area and there's lots of case law out there in relation to it.

Christine:  Yeah. Brilliant, Seamus. Thanks very much for that.

So, let's get into it then. Let's have a chat about the social media aspect. So, we've mentioned Gary Lineker already. Obviously, that was absolutely . . . I mean, the story was just so huge. It was all anyone was talking about for about a week and a half, wasn't it?

But there have been more local cases recently. This morning, if you checked the news, there is a councillor running in the local council elections here in Northern Ireland. He's been caught out. Somebody's looked back on his social media profile on Facebook, I believe. Ten years ago, he made some extremely inappropriate comments around domestic violence and domestic abuse. And he's now being kind of pilloried by the press for that.

We had also high-profile cases. They always seem to happen in the summer, maybe because of the season in Northern Ireland. You get people doing chants that they shouldn't be doing caught on camera at local GAA clubs or local Orange Lodges. And their employers react quite swiftly to that, don't they, Seamus?

Seamus:  Yeah. I mean, it's been interesting certainly. I recall functions on Facebook, and we're going back over 10, maybe 15 years, where people used to put on Facebook where they worked and they used to identify where they worked. And then there would be postings.

I've had many concerning postings of employees where there could be a potential association between the employee and the place of work. And really scrutinising the posting and maybe looking at their wider social media at the time.

I suppose now there are so many different forms of social media as well. You had mentioned about going back to the days of when it was Bebo and MySpace and things like that, and it was one at a time.

Now, if you go to post, you can post across so many different platforms. And we all know that each of those platforms might have a specific audience and different function that you might post for from a business perspective. But it's blurring that line and crossing that line in relation to what is the business side, the professional side that you're making postings on and then the personal aspect of it as well.

And what it comes down to, I suppose, ultimately is that if companies are aware that employees are using social media to promote their business, promote their job, promote themselves, it's important that there is really a clear and robust social media policy that is there.

It's great to see from the poll up there that 75% of our listeners there have a policy in place. Because when it comes to dealing with those really tricky issues around postings and where issues arise, you really do need to be relying on your social media policy to see if there is a clear position set out by the company in relation to what is acceptable and what is not acceptable.

And some of the more recent case law has delved into what training has been provided to staff in relation to social media. How is that being communicated to the staff as well?

So, very much so you almost think you're on a knife-edge with social media at times. And we see it time and time and time again that it's not just what happens in the workplace in relation to social media or what is posted about work events, but it tends to be what happens outside of the place of work and within the employee's personal time and on their personal devices.

But it's that association aspect of it that has been giving concern for the more recent cases that we've come across.

And we're aware of very swift moves by employers to disassociate themselves from actions of employees in a number of those cases that have tribunal proceedings issued, whether they've resolved or whether they're waiting to be heard at tribunal.

But it's clear that the issues will come around with relying on the basis of a good social media policy that you have and a clear understanding by employees of what is acceptable and what's not acceptable.

I was looking there at . . . Legal-Island put up yesterday in relation to their . . . There was a poll done in relation to ESG and what employees would expect from an employer and how they mightn't work for a certain employer if they didn't feel that their views aligned with the ethos of the company. And that very much, again, has to be reflected back with the employer's ethos and making sure that the employees fall in line with that as well.

And the really dangerous side of it is that there is maybe postings from 10 years ago that have been forgotten about and that can come out of the park all of a sudden. Now, usually more so if you're in a public arena, those sorts of things could come back to bite.

But there's no doubt as well of the fact that in and around recruitment, employers are vetting employees. They're looking at their social media before offers are made and they're giving consideration to whether or not the person is going to be a good fit, is going to be aligned with what's happening in work.

Christine:  Yeah. And I think there is the danger, though, isn't there, Seamus? I mean, a lot of the employers that we're talking about, the stuff that's happened in Northern Ireland with various chants and stuff being done in rugby clubs or GAA clubs, wherever it might be, they're coming out with a statement.

You want to distance the company from that type of behaviour, but at the same time you have to be very careful not to be judge, jury, and executioner because there still needs to be a fair legal employment process done once you get back in the workplace.

There needs to be the formal disciplinary process. So, you can't be out there saying, “This is abhorrent behaviour", too strongly even if it is jerk reaction. So, how would you deal with that, Seamus?

Seamus:  Well, it's a reminder that we have a statutory disciplinary procedure within this jurisdiction and basic one, two, three procedure that we've all had drummed into us now for a long time. The position on that is that if there's any failure at all to follow the statutory procedure, the dismissal could be considered an automatic unfair dismissal.

So, if you're an employer and you come to get legal advice and the solicitor or counsel, if it is counsel, looks at it and says, "Well, you've missed a step here", or, "Look, you've jumped too soon" . . . Even sometimes those public statements made by employers distancing themselves from the employee could be viewed as almost tantamount to termination of the employment, or the employee could feel that certainly on seeing that they've been dismissed. It's really important that employers do follow that through.

Obviously, there's a modified disciplinary procedure for very select circumstances that you can use, but as the advice would go, it would be that you do take a cautious approach.

You probably do need to take a speedy approach and move quickly in relation to it, but not so quickly that you're going to do something that is automatically going to look like a termination that's going to put the business at risk in relation to an unfair dismissal claim.

And if you're trying to dampen the flames of maybe an issue that is concerning the reputation of the business, if you end up at a tribunal, it's a public forum. And if there is ultimately a decision, the likelihood is that the principles of open justice apply and that your case is going to end up as a published judgement available for everyone to see.

If you take any given Sunday and you read any of the local papers here, you generally always will hear about some form of tribunal case that has been reported. And again, it's those sort of wider reportings that are done with more serious discrimination cases that the Equality Commission may have backed and things like that as well.

So, it is important that it's dealt with appropriately at the time, but there is a risk of jumping too soon.

And ultimately, a tribunal may say, "Well, this employee's actions have resulted in termination". And even if the employer went through a full procedure, you might have ended up with the same outcome. But you're going to have to run a tribunal hearing for that, and that's where the risk of that sort of more open aspect is going to come along.

So, I think you do need to move quickly, but I think that if you move too quickly and deny the employee their employment rights, you're going to be in difficulties.

Christine:  Yeah, brilliant. Just mindful of the time, Seamus, I just wanted to let everyone know there's a very useful Labour Relations Agency guide that has been dropped into the hand-out section there of GoToWebinar. You can access that. That's all around social media, so it's worth a read.

But really, I was going to sum up this particular section. My particular takeaway from this section would be to have a social media policy. So, that small percentage of you that don't, get one.

No matter how small your organisation, even if you've only got one employee, they are on social media and they will be using it. And they may put something out that you're not going to think is great and you need a document that you can point to. I mean, having a policy just is understanding for you and for them, and avoids confusion if the time comes.

Second takeaway really is you can monitor, but it needs to be within reason. And again, make sure your employee knows this. How will they know it? Because it's in your social media policy. So, it really is worth getting one.

And one very important thing to remember is you're not the thought police. People are going to have views that differ from you, and that's absolutely fine. What we're talking about is the more extreme end of the spectrum where people are maybe doing paramilitary chants, or things like that, that would be deemed unacceptable. So, you're not the thought police, but monitoring is fine. People do expect it nowadays.

Great. So, Seamus, now looking at employee behaviour, we talked a while ago . . . This was our best attended ever webinar. We were talking about this lovely gentleman in Scotland who's employed by the Royal Mail. Somebody's Ring door camera captured all this on footage. He was stepping over an old lady in the snow who was asking for his help. He told her he was too knackered and he'd have to go on. He just didn't help the lady in question. And Royal Mail took an unsurprisingly dim view of this and he was dismissed.

So, I suppose the debate is how much of being a nice person can we imply into a contract of employment while allowing people to be individuals? What are your thoughts on that, Seamus?

Seamus:  Well, I think ultimately this is quite similar to the social media aspect in that the big issue for Royal Mail in this case was the reputational damage that was done by an employee.

This was a case in Scotland involving a postman, a community-based role likely known to the residents in the area that he's delivering post to. And such a large employer, such a well-known employer. I don't think there are any of us that will not have come across Royal Mail in some guise in our lives.

And really an embarrassing position, I think, for Royal Mail where they have an employee who doesn't do the right thing and doesn't assist an elderly person whenever they've fallen in the snow. I mean, you couldn't really write that one without it happening.

But it's that aspect of can you put a thread of common decency into your handbook or into what your expectations are? It comes back a little bit to what is the ethos of the company? What are the expectations here of the employer for the employees?

I think another issue in and around that, Christine, is also the part where the employer feels that there has been reputational damage done by the employee. And importantly, in this case, it happens whilst the employee is working, whilst the employee is wearing a uniform and they're easily identified as working for the employer.

I think the last time we talked about this, we talked about what type of behaviour. So, if you go to the staff handbook and you look for examples, we know that there are always examples in the handbook of what constitutes misconduct, major, minor, and serious gross misconduct, and there are examples. And there's always that line in that says, "This is not exhaustive", that there are other circumstances that arise. And you do need to look at it on a case-to-case basis.

But you could potentially struggle with that one to say, "Well, where does it say in my contract or where does it say in the staff handbook that I have to help an elderly person if they fall? How is that related to my employment? I'm doing my job. I fulfilled my obligations. I've delivered the post". So, it's adding that additional layer on.

But I think in these circumstances, there's a human factor to this. There's an element that a tribunal would frown upon these actions. And I think that the employer could certainly bring about a clear case that their reputation has been damaged as a result.

This ended up in one of the larger publications in Scotland, and there's no doubt that there was reputational damage there for Royal Mail. And from a public aspect, public could be saying, "Well, what are Royal Mail doing about this? Have they told their employees what's expected?"

So you're looking at really maybe going beyond what is within the handbook and maybe looking behind maybe what the ethos of the company is.

And you'll see a lot of these organisations now will have straplines for their business, for their organisation, and they'll have a code of conduct. So not just will they have a list of what constitutes misconduct, but they'll have a code of conduct.

And if you remember back in your school days and in your sort of work diary or your school diary, the code of conduct of the school was always sort of on the first page and everybody was aware of the types of things that would constitute difficulties or problems. So, it is there.

But really, what you're talking about there is when it comes to some form of dismissal, it's not really a performance-based issue. You could argue that there's performance there, but ultimately, you're probably looking at some other substantial reason in relation to a dismissal where there have been actions of an employee that have damaged the reputation of the employer and put the employer in a very difficult position from a public perception as well.

Christine:  To me, Seamus, it would come down to the mutual trust and confidence argument as well.

Seamus:  Yes.

Christine:  Is it right for Royal Mail to have the confidence in an employee that they will assist somebody who is in distress? And I would think that that is a case that could be argued. Of course, it's implied it's kind of the overarching thing, isn't it, in employment contracts? "We will do the right thing by you and you must do the right thing by us". Really, isn't that what that is?

Seamus:  Yeah, absolutely. The pillars and the foundation of the employment relationship are trust and confidence. And if there are difficulties that arise in the trust and confidence, you're looking at a position of saying, "Well, can the trust and confidence be rebuilt?" If it can be rebuilt, you're not at a point of dismissal. But if you're at a point where the trust and confidence is obliterated by actions, where it's not possible to rebuild the problems that have arisen, then you are at the point of dismissal. I think the law is fairly clear-cut in relation to that.

And then the question for the tribunal is, of course, "Is that within the bounds of a reasonable response if it is dismissal?"

But absolutely, it's the trust and confidence, and it drills down into the root of the relationship between the parties. It's just important that there is something in writing contained within the contract. And it doesn't need to necessarily say that, but it needs to flow from that. This is a two-way relationship and there are expectations from both parties in relation to it.

Christine:  This is an employee behaviour question. It's very tied into this, but you actually dealt with it in your very first ever webinar with us. It's about an employee on probation. So, probationary periods are very useful tools for employers, but in this particular scenario, the person was actually performing their job fine. You couldn't look and think, "They are not performing X, Y, and Z properly", but their attitude was just not great. What can you actually do about that?

So maybe that people are being impolite to other colleagues, or they've got a kind of a "don't care" type of vibe coming off them. How should an employer deal with that?

Seamus:  I mean, certainly, the probationary period is there to allow the employer to assess essentially how the employee is working out. And often you'll see that it'll say in the contract that the probationary period is three or six months.

Sometimes it can be identified. Most of the times, people will commence a job and when they know they're on their probationary period, they will be as good as gold. And once they get across the threshold of the probation period or if the probation period is extended, but once essentially they get in and they get settled, you start to see the true person coming out at that point.

So, it can be a difficult one to manage during and identify those issues through a probationary period, but certainly, where those concerns are arising, that is a conversation that needs to take place. It's a point of improvement and it needs to be discussed.

We always talk in our webinars about that aspect of communication, and I think that if you were just to let this build up and build up and then subsequently there was a fallout and a dismissal followed . . .

I've been in so many tribunal cases where the employment judge has said or you read it in the judgement of, "You never made the employee aware of what the problem was. How did you expect them to improve or return to a suitable standard or come to a suitable standard if they're not aware of it?"

So, those conversations can be difficult, and any HR practitioner will know that they can be uncomfortable, but there is a job to do in that respect. And I think that it does need to be communicated and there does need to be some form of . . . It doesn't necessarily have to be a formal performance improvement programme. You might get to that point.

But certainly where there are attitude issues, where the job is being done fine, but there are issues arising around attitude and maybe relationships with colleagues, if they're identified early on, they need to be dealt with and that needs to be explained.

It doesn't necessarily need to be as difficult a conversation as what you might anticipate it to be. And sometimes when you bring these to the attention of the employee, you will get improvement. Sometimes you won't and you will have to go down that performance improvement process.

Or alternatively, the attitude just comes out where they badly cross a customer, and whenever that happens, it brings you into the realm of potential disciplinary processes as well.

But it is one that, for me, needs to be dealt with early. And when there are signs of that, it needs to be tackled.

Christine:  Yeah. I've got a few questions coming in, Seamus. I'll put the probation one to you first, and then there's a social media question, which I'll backtrack to. So, if an employee is off sick during probation for a few weeks, is it okay to extend the probation period by the same number of weeks? That's a good question. It's not an easy one, that one.

Seamus:  I mean, it depends on the nature of the illness. I suppose you need to be careful about discrimination aspects if there are disabilities involved and things like that, and possibly looking at some sort of adjustment to the probationary period.

But essentially, if you have a three-month probationary period and somebody has been off for four weeks of that, maybe they've had a broken limb or an injury where they just haven't been able to attend work, I think it is reasonable in those circumstances to extend the probationary period out further because what you're wanting to do is use the full period to make that assessment.

But you do need to give careful consideration to if there have been issues arising around . . . if there are disabilities or if there is a mental health issue that arises. I wouldn't just say that you can automatically do it in every case. You do need to give a consideration for the specific matters that might arise.

But in general, your probationary period is there for that assessment to be done. And that's only something that can be done over time. So, often, it will be appropriate to move the period out for a further number of weeks if that person has been absent and you haven't been able to make that assessment during those absences.

Christine:  There's just a follow-up question, Seamus. What if it is a mental health issue? You do need to tread more carefully, don't you?

Seamus:  Yeah, you do. And I suppose the caveat to that is that you're moving the parameters of the probationary period out, but I suppose it's important to make it clear to the employee that that's not a punishment, that is not an outworking of the fact that they've been off ill. The justification for it is that the assessment period is there and we haven't been able to fully utilise that, and that's the reason for the extension.

It's not a circumstance of, "Here, listen, we're watching you because you appear to have a bad attendance record, and therefore, because of that, we're extending it out because we're just not quite sure about you". But often you'll see the genuineness coming through if there are issues.

But definitely, if there are mental health issues arising, I think that again comes back to communication. You need to have that open discussion with the employee and drill down into what those issues are, and maybe look to see what adjustments can be made to facilitate and assist the employee.

You'll only get to that point through discussion. And it shouldn't really be one you should shy away from. I mean, you're not going to go into a meeting like that and berate the employee or make them feel bad because they've taken time off. It's about getting an understanding and explaining to the employee why the meeting is important and what needs to be discussed and what steps the company can take after that.

Christine:  Yeah. I've just got a comment as well about unfair dismissal doesn't apply until you have your year's service. And I think that is a very good point. There is a lot of talk around probationary periods, but they're not actually a legal thing. They're just a nice, handy marker for both parties. Isn't that right?

Seamus:  Yeah. Look, my advice is always cautionary when it comes to clients. There are circumstances during a probationary period where I will say to an employer, "I think you're safe enough to simply move to dismiss the employee". But the majority of times, I tend to advise of a cautious approach.

Usually, the contract will say that it's not just a meeting at the end of the probationary period, but it can take place if there are red flags during that probationary period.

And I think it's important that you do write to the employee, you flag up what the issues are, you tell them that you're going to have a probation review meeting with them, and one of the outcomes of that might be their termination.

There is debate around whether if there is a termination, do you go ahead and offer a right of appeal? The risk for these cases is always that you get a follow-on where the employee says, "Well, look, actually, there was nothing wrong with my performance at work during the probationary period. It was because I raised complaints, because I raised health and safety concerns, or because I have a protected characteristic and I'm being discriminated against".

The employees know that they don't have the year to bring the unfair dismissal, so they bring a different claim. And then in that claim, they allege that the unfair dismissal was a part of the discrimination, and they can be awarded for the discrimination on that basis as well.

So, certainly, there has been an increase in those types of cases, and that's why I would sort of caution at times. But I will get full details off the client. I'll find out what the background is and what has gone on, and then we assess whether we're going to move forward.

But yeah, the basic position in Northern Ireland is 52 weeks you need to get your employment rights. Different than what it is in England, because it's two years in England. So, always just watch out if people are reading things online. Sometimes that's one that gets caught.

Christine:  Yes. Brilliant. Just mindful of the time, Seamus. So, to sum up this section, I suppose my takeaways are really mutual trust and confidence is implied into all contracts of employment, but what that means is going to differ depending on the role or the organisation that we're talking about.

And secondly, really use probationary periods wisely. They've no real "legal standing", but they do serve as a really useful marker and a sound for you to review new recruits.

So, English language. As I said at the start, Northern Ireland is a much more diverse place than it was back in 1998 when Legal-Island was set up. So, we are dealing with different cultures, different backgrounds, and different languages in the workplace. Is it appropriate to ask employees to all speak English in work? Should it be done, or are there pitfalls there?

Seamus:  Well, I think it very much depends. The first point is that there is protection for employees under the discrimination order here in Northern Ireland. So, there is protection for employees. And I think the likelihood is that if you say to an employee who English is not their first language, "When you're in work, you must only speak English", there's a real risk that that's going to be indirect discrimination.

It may also be indirect discrimination and it could also be considered harassment as well. So, there is a risk. I think that's the first point that the employer needs to think about.

The other side of it as well, though, that you need to consider is, "Is there a proper business justification for such a request?" It could be that if you're a certain industry, certain business, the requirement is that there is a communication in English.

So, just to sort of jump on it, there's a good case that's by way of example of this. It's a 2015 Employment Appeal Tribunal case from England. The title of the case is Kelly v Covance Laboratories Ltd. And what we have is a native Russian speaker who claims direct discrimination and harassment because she was told that she was not to speak in Russian whilst at work.

Now, the basics are that the employer, Covance, was an animal testing facility, and they had been targeted by militant animal rights activists and they'd actually infiltrated the workforce. And the employer was suspicious of Miss Kelly because they were concerned that she was there as part of that agenda.

The specific instruction to her was that, "You're not to speak anything other than English. No Russian whilst you're in work". And she naturally then raises concerns and claims that this is direct discrimination.

It gets to the employment tribunal, and the finding of the employment tribunal is interesting because what the employer said was, "Well, actually, this wasn't an issue to do with her race at all. This was a security issue. This was a health and safety issue. We had concerns that if she was communicating in Russian, she might have been working on an agenda in relation to the animal activist side of things. We had genuine suspicions around that, and therefore, we could justify the potential of direct discrimination and harassment by the fact that we had a genuine security issue".

And ultimately, the tribunal held that there wasn't any discrimination and that the health and safety reasons were justified.

There are interesting comments about respect at work and people feeling trusted, safe, and included whilst in their workplace. But it's interesting. I think it does highlight the aspect of the justification around why you would ask for it. And I think that specifically a tribunal will very much want to know about that. You can imagine that the focus of the case will be on, "What's the justification, if you have it?"

But I mean, it does happen. I was in a Caffè Nero recently. I don't know where the two individuals are from, but there were two ladies. I was getting a coffee and they were communicating in their natural language. They were laughing and joking. And a couple of times they looked at me and I got a bit paranoid and thought, "Oh, god. Are they talking about me?" And then I told myself to wise up and I went on with my day, and that was that.

But when I saw the question, it reminded me of that. And I suppose there are elements of certain businesses, certain industry, where you will have a requirement to speak in English, but it doesn't mean that you can't have two employees talking in another language. You can just imagine the kind of worms that would open up if there was some form of direction that "English only" and that's it.

And just another aspect around health and safety and making sure that interpreters are available if you're putting instructions up. Maybe not only are they in writing and different languages, but around health and safety, sometimes you'll see drawings up showing people how to bend and stoop when they're picking things up. And the purpose of that is that it's open communication.

Christine:  Brilliant. Thanks, Seamus. I know we're rattling through this, folks, but I'm mindful of the time. So, I suppose my takeaways really on that particular part of the webinar is whether you can insist on English being spoken is really going to be circumstantial. There may be times where it's completely inappropriate or it is fine in certain circumstances, in certain workplaces, I suppose.

And really, what I'm taking away from this is a total ban on other languages or insisting that English is always spoken is always unnecessary, and is likely to be discriminatory. So, don't go there, I suppose, is the takeaway.

So, resignations. We had our poll on resignations, would they allow an employee to rescind their resignation, and most people came down on the side of it depends who they are, which I think is a very sensible approach, Seamus. What's your view?

Seamus:  It is an interesting question that happens, and sometimes tribunals will tend to look at the justification for not rescinding as well. That can be an issue.

Really important aspect that comes out of the case law on this is what was the employee communicating? Was this a hot-tempered moment where the employee walks and says they're leaving, or is this a proper thought-through process where an employee submits a letter in writing and advises that they are leaving their employment?

That follow-up that we talked about at the very start of this, of getting an understanding of the reasons for the decision to resign, is important. And that can be built into the employer's decision when it comes to looking if the employee comes back and rescinds or wants to rescind.

Those cases of the hot temper aspect you need to be much more careful on. And there's clear case law there that employers could be in difficult positions if they refuse to rescind.

Ultimately, you might be better going down a disciplinary route if there has been an issue that has arisen that potentially is disciplinary and the employee walks and says, "I'm out of here. I'm leaving", and then comes back into work on the Monday and says, "I'm sorry about that. I'm not resigning".

So, types of things that tribunals will look at will be, "Well, why wouldn't you take them back? Had you already recruited? Were you planning on looking at redundancies or reducing workforce?" and things like that.

There are good, interesting cases. The main one really around that decision of hot temperedness is . . . there's a UK case, Kwik-Fit v Lineham, 1992, that sort of sets out the position of that.

And there's a good, interesting one there, East Kent Hospitals University. It's a 2018 EAT decision where the employee applies for a transfer, gets a transfer within the trust, but goes to her manager and says, "I'm resigning", and a P45 is issued. And they say, "No, you said you were resigning". She says, "It's a transfer". They end up in a tribunal scenario, and ultimately the tribunal say, "Well, looking at the basis of the resignation letter, this was not a resignation. This was a transfer that was happening".

I don't know whether there was reinstatement or re-engagement or what was happening and the outcome of it, but I think it is looking at the resignation.

And we've all had those cases where somebody has resigned, and they've come back subsequently and said, "The offer's been withdrawn, the job's no longer there, funding's no longer available, or my references didn't check out", and what the employer does at that point.

But it's just not a straightforward matter of saying, "Ha-ha, you resigned. Sorry. Over and done". You need to look at it a bit more closely than that.

Christine:  I mean, it happens a lot, Seamus.

Seamus:  It does.

Christine:  When I was working for the Federation of Small Businesses, it was a weekly occurrence, a weekly question that I got at least once a week, every week. It was normally somebody storming out, "Well, I quit. You can take your job and do this, that, and the other with it".

We've got a question here. How long can you give someone to reconsider if you think that they have resigned in haste? It's one of those nice lawyer answers, isn't it, Seamus? How long is the piece of string?

Seamus:  Well, ultimately, I would say the longer the period of time before they come back, the narrower the opportunity to rescind the resignation. I would assume that after a number of weeks have passed, the employer's already got the wheels in motion in terms of recruitment or internal promotion filling the space.

It's more difficult to justify the longer it is, because then you're going back. A tribunal will say, "Well, look, you resigned and then you had a number of weeks. Why all of a sudden? You made your intentions clear at the time of the resignation". So, you do need to look at it to see what the reason is for wanting to come back. But yeah, it's the piece of string answer.

Christine:  Yeah. Brilliant. Thanks, Seamus. We're a wee bit over, but I just wanted to sum up this section. So, my takeaway is there's nothing to say that a resignation can't be rescinded by mutual agreement. That's your ideal scenario, where someone you really don't want to leave comes back and says, "I've made a mistake". That's great. They don't have to leave. But if you do want to hold the person to their resignation, it's really going to depend on the individual circumstances.

And I know you might say . . . I would say this. I'm an ex-solicitor. But I do think this is a scenario where you need Seamus. You need a lawyer to look at all the aspects of it and give you a bit of guidance. So, I would reach out for some help in that.

Thank you all very much for all your questions today. I've got some lovely comments. Thanks to Seamus for sticking with us over the years. It's been a pleasure to listen to all of your podcasts. So, that's lovely. Thank you very much.

Seamus:  Thank you.

Christine:  You'll just see on screen there is a bit of a slide for the NI Data Protection Update 2023. It's coming up later in the month on 17 May. We've got the Information Commissioner's office coming along to talk to us about their plans for the future and about all the fines and penalties that they've been imposing over the last year. We've also got a great legal update. So, do join us at that.

It just remains to say, really, thank you very much for coming along. You can catch up with "Unemployment Law at 11" on Spotify, Amazon Music, or Apple Podcasts there.

Of course, if you do want to connect with either me or Seamus, we're both on LinkedIn, so please do give us a friend request. Whatever it's called on LinkedIn, do that.

But we will see you . . . We're off next month. We're off in June, so we are having a little bit of a break, but we will see you again in July. Thank you all very much, and we'll see you then.

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